HIGH COURT OF LESOTHO
Leppan : For Crown
: For Accused
by the Honourable Mr. Justice T. Monapathi on the 29th day of October
Accused was charged with one count of bribery. It was alleged that:
"........... Upon or about the 9th day of November 2000 at or
near Maseru Magistrates' Court premises in the district of Maseru,
the said accused who at the material time (was) a public prosecutor
holding the rank of Chief Public Prosecutor attached to Maseru
Prosecution office and as such a State Official, did unlawfully and
intentionally corruptly accepted from one.'MAMATING NCHANYANA, the
amount of M500.00 (Five Hundred Maloti) as consideration for
declining to prosecute and or withdraw or cause to be withdrawn,
demise' charges and/or destroy evidence in respect of the charge of
Rape, Housebreaking and a
contravention of the Internal Security General Act 1984, against a
relation of the said 'Mamating, viz NCHANYANA NCHANYANA, who at the
time of acceptance of the said bribe was detained in gaol at Maseru
Central Prison on allegation of the aforementioned crimes committed
by the said detainee NCHANYANA NCHANYANA."
pleaded not guilty after protest from her Counsel that there was no
full compliance with a request for further particulars to the charge
requested earlier. Indeed as I concluded there had been no need to
reply to such particulars much as the acts alleged were charged in
the alternative and the Accused clearly knew the case to meet in
order to plead. I have agreed with Mr. Leppan that the charge could
still even be amended and that it be amended to say that the Accused
accept......." as considerations............." which
were permissible under sections 158, 161 and 198 of the Criminal
Procedure and Evidence Act 1981 (CP&E) The background to the case
was a simple one.
was the arrest of the said Nchanyana Nchanyana which led to the
involvement of his sister Mamating Nchanyana who became (PW 1) in
these proceedings. It was a concern of PW 1 about her brother who was
languishing in prison since about July 2000 that led her to seek to
assistance of the Accused before Court. In addition there was
Nchanyana Nchanyana was ill which PW 1 had confirmed. Nchanyana
Nchanyana had been charged with rape, housebreaking and theft. There
was another charge. A third charge. Cash bail deposit had been fixed
for the other two cases but not for the third. Accused and PW 1 met
and discussed things. After that conversation was born the
allegations that Accused faced. Unwittingly (PW 1) enlisted the aid
of the police officers as several police officers would testify as to
how they dealt with money intended for entrapment of the Accused.
There would be the evidence of PW 1 and a number of police officers
as we have on record.
Before Accused and PW 1 met in August 2000 PW 1 had attended at the
Accounts section of the Magistrates Court where at that time, files
for this cases were not found. This led her to come on the following
day. It was discovered or she was informed that the case was
prosecuted by the Accused as the records there showed.
2.3 PW 1
then went to the Accused's office. The latter confirmed that she was
the one who was going to prosecute PW l's brother's case. PW 1
explained that she had come about the cases of her brother. Accused
explained that Nchanyana Nchanyana had been granted bail in two cases
and the third one had had not had bail granted. PW 1 went back home.
When PW 1
was at home she met one gentleman by the name of Sepiriti to whom she
explained her brother's situation. Sepiriti said they should see
Accused on the following day. When they arrived on the following day
they found Accused already in Court. She came out after some time
after being informed that she had visitors.
Accused explained that in one case Nchanyana was given a bail of M300
in one of the three cases. The second one had been fixed at M200. The
third case had had no bail fixed therefor. The other case remained
with no bail having been granted to the accused. The witness then
"Accused said we should before she could assist us she advised
us that we should pay bail in both matters and with the third one we
should first pay a sum of five hundred Maloti."
'm'e Letsie ore hore a tle a re thuse re tlameha re patale chelete ea
beile pele eno e 'ngoe a ka lokolla nyeoe eno ha re ka ra fana ka
did she say about the third case?
PW 1 That
if we give her a sum of R500 she will cancel the case. (Are ha re ka
ra mo fa Five Hundred o tla "cansella" nyeoe.)
words did she use?
PW 1 She
said she would.......something which shows that the case will
proceed at all. It was the words which showed that she would
eventually not proceed with the case.
(O ile a
re o tla..........ntho e bontsang hore e ke ke ea hlola e
pele ho hang.) '
you ts you stand there remember her exact words?"
PW 1 I do
not recall her exact words My Lord, but it was words which showed
that she would not eventually proceed with the case." (Ha ke sa
a hopola hantle. O ne a bontsa hore case eno ha e sa tla ba teng ho
were the M500 for?
PW 1 They
were going to pay bail for the two charges which was already ordered.
(Ana e ne e le a patallang li case tse se ntse li fanoe.)
she said you must pay another M500 (A re u patale five Hundred Rand e
PW 1 We
would bring another having cleared the first.
(E ne e
le hona re tla e tlisa ha re se re clearile e nngoe.
third sum that she mentioned the M5000 what was that for? (Ena
enngoe, makholo ana a mahlano a ne a bua ka one, a re le a patale e
le a boraro e ne e le sebakeng sang?)
PW 1 That
she would dismiss the case.
nong ho thoe re e patale? A hore u tlilo qhala nyeoe eno.)
CC If you
paid the R500 what did you think would happen to your brother?
(Ha u se
u lefile maluti ana a makholo a mahlano u ne u nahanne hore ho tla
etsahala eng ka khaitseli ea hau?)
PW 1 He
will be released. (O tla lokolloa.)
he be prosecuted thereafter?
kumor'a moo u ntse a tla qosoa?)
did you say to her when she made this suggestions? (Ha a etsa
tlhahiso e ho uena u ile ua etsa joang?)
PW 1 I
agreed My Lord.
1 added that she knew what she was agreed to was wrong. It was around
October 2000. I have rendered this testimony in the way it appears or
recorded for the simple purpose of showing how elaborately the matter
was extracted from the witness and after that how demonstrable was
the state of mind of the Accused if PW 1 was to be believed. She was
not cross examined by Accused's Counsel.
1 after the said agreement went home. She met Sepiriti on the
following day and proceeded to Accused's office. Accused was in
Court. She was summoned to come . They went into the interview room
where further discussions ensued. They agreed about M500 PW 1 went
was beginning of November 2000 when PW 1 had M300 with which she went
to Magistrates Court. It was too early in the morning and the
Accounts section had not opened. She handed over the M300 to Accused
to deliver to the accounts section because PW 1 would be late for
money Accused put in her bag and then into an office filing cabinet
which had been locked. She unlocked and then locked the cabinet
again. Accused I asked for the balance of the money for the other
case. PW1 said she thought it was wise to deliver the sum while she
would look for a further M200. She was in her office with the witness
and Accused in the latter's office. Accused had then asked about
where the M200 was because the two cases together add up to M500. PW
1 explained that she gave Accused the M300 because the accounts
office was not yet open. She asked Accused who was dealing with the
case to pay on her behalf.
witness then left for work. Along the way she met one Batlokoa (PW 8)
who was a friend of hers. She informed PW 8 that she had just come
from the magistrates court. Then she met Accused who was prosecuting
Nchanyana Nchanyana's (PW l's brother) case. That bail had been
granted in two cases and in the third it shad not been fixed. The
witness needed M200.00. She testified as follows:
PW 1 In
fact I told him that I had a shortage of M200 and sum of M500 which I
am supposed to give Accused. (I lantle beile ka re ke hloka chelete e
M300 ho qetela Account joale le Five Hundred eo ke tlamehang ho e fa
was the Five Hundred for, what did you say?
PW 1 That
I was going to give it to Accused so that he could dismiss the case
which was not bailable My Lord. (E ne e le eo ke ilo e fa 'm'e Letsie
hore a tsebe ho qhala nyeoe ena eo ea sa fuoang beile.)
Back to the meeting with PW 8. PW 8 promised that he would look for
the money from his sister. PW 1 gave PW 8 her work telephones. While
the witness was at work PW 8 phoned her. He said he had not been able
to acquire the funds from his sister but that there was someone who
promised that he would assist him.
8 had later looked for the PW 1 as he said to the witness and had
himself testified. PW 1 was absent. They later met in Thaba-Bosiu at
the witness home on an evening. He was accompanied by three gentlemen
who were travelling in a van. She did not know their occupation. PW 1
and PW 8 had a discussion. The two agreed that he would give the
witness Ml00 on the following day near the Government Complex No.3 at
around 7.30 am.
1 did meet PW 8 as arranged. PW 8 was with one gentleman who had
accompanied him on the previous day. PW 8 then instructed the other
gentleman to give over M100. It was reported that the gentleman was
the person who had promised to lend PW 8 the amount of money. It was
The money was made of an M50, two R20 and one M10 note. It was in
After receiving of the money PW 1 and the two gentlemen proceeded on
to the Magistrates Court. They headed to Accused's office into which
PW 1 entered while the two gentlemen remained outside. She found
Accused present. PW 1 gave Accused a sum of M250 including the M100
from PW 8 because the witness still had her own M150 The M200 was for
completing the first M300 to make it M500 altogether. The M50 was for
medical fees for Nchanyana Nchanyana (the witness' brother). The
Accused said she was on her way to Leribe and would come on the
following Monday. M50 was for medical fees of the witness brother
which would be delivered later.
witness was not sure that sending over the money to the
awaiting-trial prisoners or others was a proper thing to do but she
did not suspect anything because they had in the past sent goods to
her brother. Accused then said thai the witness must by all means
arrange for the M500 which the Accused had requested because she must
speak to the magistrate with whom they were dealing with the case.
That was for the third charge.
the money was received by Accused she put it in her handbag and put
in the filing; cabinet which had been locked. She unlocked it. She
put back the bag into the cabinet. The witness was not sure if the
Accused locked the cabinet because she left after the cabinet was
unlocked. She did not recall clearly what she did with the handbag.
still being led in chief the witness recapped to say that there was
something which the Accused said on the first occasion when she gave
Accused M200. She said that all the bail deposits amounted to M500
and that the witness should remember that besides the M500 she was
still obliged to pay up the M500 which she needed which they will
share with the person with whom they are prosecuting the case. The
witness did not know the other person the Accused was referring to
but she believed that it was someone Accused was working with. She
left M250 which included the Ml00 received from PW 8; on the last
occasion. She had then gone back to work
that last day something else happened during the course of that day
as PW 1 had testified further. After an hour after she had arrived at
work she was told that she had visitors. When she got out she met
some two ladies and two gentlemen who showed her their identity
police officers. They asked her whether there were someone who gave
her an amount of money during the morning. She agreed. It was R100 as
she answered. They asked what it was for. She explained that the
money was for the Accused to pay bail for the witness' brother. They
said the witness was not telling the truth and Accused had already
been arrested about that money. PW1 said part of the money had
already been changed. They asked whether she had some money with her.
She agreed. She showed them M100 - notes altogether. They used a
scanner (camera-like machine) through which the invisible writing on
the notes was revealed. It was altogether an amount of M100 which
they screened. There were notes on which it was written "police
trap". It was the two M20 notes and one M10. It was altogether
M50. After that they directed the witness to police headquarters.
When they arrived at the police office PW 1 found Accused present.
asked what was happening about the money. She explained that her
brother was arrested M500 was needed for cash bail deposit and that
Accused said she wanted a further M500 after which she would dismiss
or "destroy" the case. She was asked further whether it was
for bribery or for cash bail deposit. She told them insistently that
the amount paid was for cash bail deposit and
amount for bribery was still to be paid.
took it to be a serious indictment against the Accused and formidable
item for corroboration that the Accused did not confront PW 1 and put
forward her side of the story. I bore in mind Accused's calibre that
she was an experienced prosecuting lawyer. At least she should have
denied that a third case existed or that the initial payment having
been received had been forwarded to the Accounts Department. She was
made to listen to a tape recording made at Thaba-Bosiu when the
witness and PW 8 were having; a conversation which recorded
everything including what Accused had promised to do to assist the
witness about the problem of the witness' brother. The witness was
thereafter instructed to go to the magistrate to give a statement.
They went to police headquarters where she was released on condition
that she would later be called through summons to Court. She ended up
giving a statement of confession before a magistrate. It was about
two years before she testified in this Court.
1 was shown, with the Court's permission, her original Sesotho
statement allegedly made to the magistrate. It was in order to make
recollection of events from which Crown Counsel had not received
instructions. The purpose was primarily to refresh the witness
memory. Mr. Fosa did not have any objection. The witness reiterated
that the amount actually paid was for cash bail deposit. The other
amount agreed upon was still to follow. Accused would then dismiss or
"destroy" the charge. Because the police intervened the
latter did not happen. She would still deliver the M500 promised had
it not been for police intervention.
above constitutes a summary of PW l's evidence except where as shown
the extracts made were verbatim. The above summary was the evidence
upon which Defence did not cross-examine on. Mr. Leppan submitted
that the evidence was damning.
3.1 PW 1
was declared an accomplice a short while after she had commenced her
evidence. I warned her accordingly. Her evidence as I agreed ought to
be approached with caution for good reason as it later transpired. It
was not disputed that a certain total amount of money of M550 was
received by the Accused. Incidentally no official receipt of any
amount was produced as DW 3 Mrs Lephoto Accounts clerk testified,
despite that she alleged she received the.M300 . This will be shown
to be significant
in the judgment The amount of M50 had a reason for its payment about
which Accused and PW 1 agreed.
PW 1 evidence was not challenged became momentous. Its significance
could not have initially been sufficiently gauged by the defence as I
suspected. That it became unchallenged was after communication
between Mr Fosa - Defence Counsel and Accused. Mind you Accused was a
former police officer and had more than ten years experience as a
public prosecutor. Mr. Leppan would remind the Court of this on
several occasions. It was for a good reason.
3.3 PW 1
referred to three (3) cases involving her brother. Two of these had
cash bail deposit fixed for them while the other had not yet had bail
fixed for it. It was this last case for which she agreed with Accused
that it will not have to proceed because she would cancel it and make
it not to continue on payment of M500 for its dismissal. It meant
that the accused (PW l's brother) would be released. They agreed.
They agreed for payment of a further M500. It was then that she went
home and was to secure the funds. Then things unravelled as already
stated herein before.
pursuance of the charge the Crown led nine other witnesses and in
out the first M300. It was then that she must have also spoken of the
M500 needed for bribery. This PW 8 confirmed. Batlokoa (PW 8)
promised to give PW 1 M100 which she gave to PW 1 on the day of the
trap. It is PW 8 who got in touch with police presumably on the
informal ion given to him by PW 1 who was his friend. PW 8 gave
certain informal ion to PW 2.
7.1 PW 2
recieved information on 10th November 2002. He came to possess
certain information from Senior Inspector Moeketsi about information
from PW 8. Assembled were Sgt Nyane, Policewoman Motsepe, Policewoman
Makhakhe, Trooper Fosa and another officer. It was resolved to set up
a trap at the magistrate court "against" Accused.
order to set up the trap money notes amounting to M100 were
identified and marked with invisible pen marker that could only be
identified by a special laser scanner. Four money notes were so
marked namely, M50 note (C 344501) M20.00 Maloti note (F819867) M20
and M10 note (A 112561). It was these notes that were given to PW 1
by PW 8. They were then passed on to Accused by PW 1, unknown to the
latter that the notes were marked. She had already paid her an amount
8.1 PW 1
then proceeded to the Court at about 7.30 when she and Accused came
in Accused's office. It is there where Accused was given M250 to
"make it M500. It was to cover M300 to make it M500. PW 1 gave
Accused M550 altogether. The Accused would agree with the magistrate.
They work together with magistrates as PW 1 said she was informed by
Accused. This was the agreement between Accused and PW 1.
said before PW 1 was declared an accomplice witness who was cautioned
in terms of section 236 of the Criminal Procedure and Evidence Act
1981. It followed therefore that being an accomplice, her evidence
needed to be approached with the requisite degree of caution. Having
done so and if satisfied a Court properly convict on this evidence.
See R v Thilke 1918 AD 373.
Even though the evidence of PW 1 went unchallenged and since the
Crown case substantially rested on this accomplice's it is perhaps
pertinent to deal with the law relating to such evidence. I was
referred to section 239 of the Criminal Procedure and Evidence Act
1981 which provides that:
"Any Court may convict"any person of any offence alleged
against him in the charge on the single evidence of any
accomplice, provided the offence has, by competent evidence other
than the single and unconfirmed evidence of the accomplice, been
proved to the satisfaction of the court to have been actually
trier of fact is warned that:
"The caution Court or jury will often properly acquit in the
absence of the other evidence connecting the accused with the crime
if no rule or practice requires it to do so. What is required is that
the trier of fact should warn himself of the special damage of
convicting on the evidence of an accomplice for an accomplice is not
merely a witness with a possible motive to tell lies about an
innocent accused but is such a witness peculiarly equipped by reason
of his inside knowledge of the crime to convince the unwary that his
lies are the truth."
Schreiner J in R v Ncanana 1948(1) 399 A-J at 405. The learned judge
warns that the special danger is met by corroboration or proof
aliunde. The need is however reduced if accused is proved a liar or
fails to contradict or explain that of the accomplice. I would
instantly observe that the present was a classical case where the
evidence of an accomplice "damning in its nature" was
neither challenged. Perhaps the Defence concluded that PW 1 was a
lying witness. Even if it were to be so the salient question would be
to what extent. And furthermore when the evidence of the other
witnesses is taken in its logic or consistency whether or not it
corroborates the accomplice's witness in the necessary respect
it was not on all the evidence or on all the issues.
need for exercising caution over an accomplice's evidence is to
ensure that even if the section is satisfied, there is some further
guarantee that the right man has been brought to trial. See Schreiner
J in R v Mpompotshe and Another 1958(4) SA 471(A) at 476E. Finally
another reason for approaching an accomplice testimony with care is
to be found in S v Hlapezula & Others 1965(4) SA 435 at 440D-E.
9.4 I may
instantly comment at the onset that the true value of the events that
happened after PW1 and Accused agreed after the first payment of
M300. The events may not necessarily be an execution of the bribery
or furtherance of the bribery. They may be for something else for
example to continue or act as corroboration that there had in fact
been agreement between PW 1 and Accused. It may perhaps even be that
the police trap was bad or botched. But what value it does have like
other events is by proving that there was an agreement between PW 1
and Accused. That the defence may have felt that it amounted to
nothing more may have been one of the underlying reasons why PW l's
evidence was not contested. It may have been anticipated that there
would thereafter be no proof of an act of bribery thereby
misunderstanding or mistaking the true
PW 1 's evidence as it stood. Or the defence could have perceived
conflict or contradictions in the evidence of PW 1. A close look will
reveal otherwise. May be even an unmotivated cross-examination would
have revealed real contradictions if there were any. That no
cross-examination was attempted had the effect that Accused's version
was not put to PW 1. For the failure to put the accused's story to a
witness see Phaloane v Rex 1980-84 LAC 72 at 77 F-J, 78 A-C.
the above reasoning I agreed with Mr. Leppan for the Crown that Crown
witnesses evidence was generally credible and convincing and pointed
presumably to a prior dishonest agreement between PW 1 and the
Accused. For example why is this coincidence of the so called plot by
PW 8 and police officers that sought to entrap the Accused if the
Accused did not have an agreement that sounded substantially as PW 1
has put it. That is to say PW l's deposits (as she said) were
intended to exceed M300 and M200 since there was agreement about a
third case. Mind you, quite belatedly, the defence sought to wish
away the third case by putting Exhibit "C" and "H"
to show that there resulted a conviction in relation to two cases or
counts namely Assault GBH and rape, that is to suggest that there was
no third case. Why would PW 1 imagine or fabricate as to the
existence of a third case? And why was her testimony not challenged
the existence of a third case? It cannot therefore be to the
Accused's advantage. I disagreed with Mr. Fosa that since we have not
been told where the third case all about it ended. As I concluded
there should have been such a case. Probabilities do not point
Leppan submitted that the evidence of the Crown witnesses was
generally credible and convincing and pointed out persuasively to a
prior dishonest agreement between PW 1 and the Accused. This
conclusion also enjoys admirable support from probabilities. I
respectfully agreed. This is to bo said about all the police
witnesses who confronted the Accused in one way or the other. I would
even add to this the evidence of Chief Public Prosecutor, Buang
Mothae (PW 9). Before this witness, while the opportunity presented
itself, the Accused never made any explanation seeking to indicate
that she came by the monies, sought by the police, legitimately. PW 9
was the best person, if police presence threatened the Accused, to
have been given a modicum of an exculpatory statement. As will be
repeated later the Accused fared badly in suggesting that there was a
threat of assault or otherwise by the police officers. If at all
anything can be said in that regard, it is that she was threatened by
the enormity of her act, the repercussions or the consequence of the
exposed agreement or the scheme as the Accused must
her guilty mind, suspected was fully known.
will pause, at this juncture, and ask a simple question. The question
being against the background that PW 1 had become an unwitting
participant to the so called trap. What difference does it make to
the attitude or state of mind of the Accused if the police witnesses
who went about that trap had misunderstood the marked money to be for
a bribe. That is if the situation had been that the police understood
that the first payment of M300 was towards the bribe and the second
M200 was added to the bribe to make a total of M500. As against what
PW 1 unquestionably said (as the transcript shows) that there would
be payment of M300 cash bail deposit and of the first case and M200
cash bail deposit of the second case and finally that M500 would be
paid later towards destroying/cancelling/dismissing the third case?
What difference would the two scenarios make if the underlying state
of affairs was that both scenarios in any event accorded with the
unchallenged evidence of PW 1 that the Accused entered into an
agreement with PW 1 to accept a bribe which Accused either received
or waited to receive in the future.
looked for the alleged contradiction by PW 1. I have looked closely
evidence of PW 1 in relation to the possible scenarios that she
paints in her evidence being either that M500 paid was for bribe or
M500 bribe was to l>e paid "in the future". What seems
to stand out and which I believed was that the M500 for bribe money
was still to be paid "in the future" in exchange for doing
away with the third case. It is said the witness was not frank but
that is not how she looked in the witness box. I looked at her
demeanour. She was truthful. She may have looked jittery, and
excited. Only that. So that no aspect which was said to indicate that
she was not candid was not forthrightly pointed out by either side.
She was not demonstrated to be a liar. That it was suggested at
anytime that her evidence was not satisfactory can only have been
cause by panic on the part of the Crown that the witness insisted
that the payment of actual bribe money was to be in the future. I did
not observe anything indicating that her discharge from prosecution
ought not to be supported.
9.9 As a
matter of law, nevertheless, the mere fact that a witness even an
accomplice witness had lied in one respect does not automatically
attract a rejection of all the evidence. See S v Millar 1972(1) SA
427 at 429 as quoted by late the Honourable MP Mofokeng in Criminal
Law and Procedure Through Cases (1985) at page 145.
scheme about the entrapping of the Accused was as near as possible to
a work in the James Bond - 007 novel series in its execution. This
case is unfortunately not really about such dramatics. Policewoman
Motsepe (PW 5) and Policewoman Makhakhe (PW 6) were detailed to
confront Accused about the money she had just received from PW 1.
This was after signal given by other police personnel who were
nearby. The two officers identified themselves as police officers.
realizing that these youngish ladies (one of them could be mistaken
for a 16 year old scholar) were police officers the Accused urinated.
It was after they identified themselves as police officers. She
requested to be forgiven. This she repeated. She commented that the
confrontation will result in her losing her job and that her children
will no longer be able to attend school. The question would be why
did she react in this manner? It was submitted that the inference
from this evidence was irresistible in showing the Accused to have
had a guilty state of mind. The defence was not able to suggest a
good reason why the Accused would behave in this matter. Mr. Fosa
sought support from S v Ernst 1963(3) SA 666 which I found
distinguishable in many respects. One example being that it dealt
with interpretation of a statute. But in so far as the case speaks of
a state of mind of state official who corruptly "received or
agreed to receive" a
statement on page 667 F-G it quite accurately states the test as
"The existence of that intention and state of mind can be proved
(or negatived) by any of the usual kinds of evidence and inferences
accordingly view the said behaviour of the Accused from that angle
and draw a necessary inference.
Accused did other significant things. She had stashed the marked
notes in the midst of a sum of about M4,390 in notes which she
reluctantly retrieved out of her bag which was locked in the drawer
cabinet. She had initially denied that she had received any money
from PW1 on that day. In addition Accused failed to mention at any
stage that the money given to her was to pay bail for PW l's brother.
Most of the evidence of the two officers was unchallenged. Of supreme
importance Accused should have made this explanation when the Chief
Public Prosecutor (PW 9) and one of the senior police officers were
present if the two junior police officers had intimidated her. Mind
you PW 9 was called immediately and one senior officer (Moreki)
followed and PW 5 and PW 6 "ala James Bond" after a signal
or summoning by one of the officers.
two junior officers told their evidence in a straight forward and
candid manner. They intended to tell the whole truth. It is correct
that in the understanding of this officers if it was not what they
were told or a presumption that the money (M200) that was paid over
was actually for bribe. I would find that this appeared to be
inaccurate. Anyway it did not seem that it was brought about by any
intention to fabricate. Mr. Leppan suggested that much discrepancy
between PW 5 and PW 6 can easily be explained by effluxion of time
but more significantly by the fact that PW 6 was absent from the
office for a while in order to summon Inspector Moreki (PW 2).
misunderstanding on the part of the young officers about what the
money was for could even have emanated from the police headquarters
where the scheme about delivering the marked notes through PW 1 was
hatched. I did not feel inclined to say that it was a bad trap or a
good one. Suffice to say that as a result of the following up of the
marked notes as Mr. Leppan submitted the unlawful state of mind on
the part of the Accused was made palpable and was revealed for what
it was. Accused's side of events had to be quite impressive for a
formidable body of evidence which the Crown case had become. This I
say having heard both versions.
Accused testified to say that the policemen demanded M500 from her
after PW 1 had paid over M250. They threatened to assault her. The
M50 was for medical attention of Nchanyana Nchanyana while the M200
was for the second cash bail deposit. There had been nothing wrong in
receiving money for cash bail deposit and for onward transmission to
Accounts clerks. It was something that was done quite often and above
board. She could not have done anything wrong in receiving such
deposits. Indeed as she said she received money from PW 1 but it was
never for bribery nor had there been any agreement between Accused to
take payment or receive bribery for the third case. She alluded to
there being no such third case nor that she had anything to do with
such third case.
Accused found nothing wrong with intending to assist PW l's brother
by delivering the medical fees. She said it was an accepted practice
and had been done many times before.
Accused wanted to point a picture of where there had been conspiracy,
ganging up and fabrication of evidence to suit certain purposes e.g.
PW 9's loathing or hatred of her. All these had been unknown to the
Director of Public Prosecutions (PW 10) nor had there been a report
between the Accused and PW 9 (Mrs Mothae). It ultimately boiled down
to where several people including PW 8 and PW 9 must have sat down to
scheme and manufacture the evidence or facts that brought about the
charge against Accused. Included in this, as the Accused contended
was the police who were instigated, as Accused suggested, by PW8.
theory about conspiracy, even much as it took inordinately long to
discuss in Court, was difficult to believe. Accused was not telling
the truth when all things were considered. For example how would PW 9
Mothae have known that PW 1 would speak to PW 8 who in turn would
contact the police. I placed a lot of weight on the fact that PW 1
herself did not even know about PW 8's liaison with the police.
Much as I believed that the questions of whether public prosecutors
were allowed to receive and transmit deposits, and whether they could
ferry monies to prisons were peripheral therefore I would discuss the
matters no further. I would rather say that it is clear that although
public prosecutors are not permitted by their terms of reference to
do those things, they appear to do it occasionally as PW 9 (Mothae
herself) must have at one time done it demonstrably. But they were
clearly not allowed
that. I found it difficult why the Accused could not just admit that
which they did in practice was not allowed by the rules. Prosecutors
are not allowed to handle money. Why did the Accused put her job at
risk this time? She herself confessed that her job was in jeopardy,
While there was little value in Director of Public Prosecution's
evidence there was even less value in DW2's (Tshabalala's) evidence
than to show that Accused was not candid in one of these things,
namely that public prosecutors are not authorized to handle people's
concluded that Accused's version was palpably false beyond a
reasonable doubt. I did not believe her that that PW 5 and PW 6
demanded from her M500 nor threatened her in her offence. Moreover,
as per the evidence of Mothae (PW 9) the allegation that the young
policewomen threatened to assault this Accused is most improbable.
She could have called on for help or reported this to her senior PW
9. I tended to agree of the unlikelihood of senior prosecutor being
threatened by junior police officers in her own office at a
magistrate's Court d. It defied belief. My suspicion would even be
that it was awe inspiring for those junior officers to have been
called upon to confront the Accused. They can only have been
motivated by the knowledge that their seniors were
and not far, if not their sense of duty.
did no! find much to say in favour of the Accused when she was
cross-examined. Of course the questioning just became so thoroughly
painstaking that when it took effect signs of distress from the
Accused became unmistakable. Nor did I expect much against the
evidence of PW 1 in which the whole thrust and completeness of the
case (subject to corroboration by PW 5 and PW 6) was. The evidence of
the two young police witnesses apart from finding the marked notes as
I instantly record further directly and indirectly implicates the
Accused. That much was palpable through the remarks of the Accused
Accused had started confidently in her evidence-in-chief. Accused was
however evasive and contradictory under cross examination. She became
loud and shrill when the question of her inability to challenge the
evidence of PW 1 was raised. What also made her greatly uncomfortable
was to realize that she could not make a good story about alleged
threats and assault by PW 5 and PW 6. She realized that.
observed that as the heat was on "when the shoe began to pinch"
Accused became sweaty and distinctly restless. She took an
to answer simple questions. At times she ignored answering questions
if not being stubborn and aggressive. She was repeatedly asked to
answer questions. The Court had to intervene. I agreed that her
demeanour was therefore poor and unconvincing. Her showing was
unsatisfactory as witness and it is a factor which must count against
may merely repeat for the sake of emphasis that the Accused was in
dire straits that the question of conspiracy could not count for
anything. It had not been suggested to Crown witnesses. It was
clearly an afterthought inasmuch as no link could be established or
such a strong motive to incriminate the Accused much as Accused
suggested that PW 8 had promised to get even with her while she had
been performing her official functions. I thought this was a red
herring. This conspiracy theory added much to make the Accused an
unreliable witness. This added to massive improbabilities in the
aspect of certain things not having been put to Crown witness became
such a thorn on the side of the Accused. Crown Counsel dwelt on it
with alacrity and constantly throwing the Accused off her tangent
that she on so many occasions (and unfortunately too many) she
resorted to blaming her Counsel. I agreed that it was an accurate
Counsel painfully and to his credit and in a vain attempt to serve
the interests of his client he had to shoulder responsibility for her
failure. This was not enough as it was clear that even Counsel was
surprised at some of the answers given by his client.
Having spoken about Tshabalala DW 2 who dealt with a peripheral issue
of taking of money deposits by public prosecutors DW 3 (Mrs
Lephoto's) evidence remains. Why, I thought the question of taking of
money deposits was peripheral I thought it was so inarguable that a
public prosecutor should by right and duty not receive such deposits
for any purpose. I did not see why Tshabalala had to be called unless
it was merely to show solidarity with Accused. If so that was cheeky
to say the least.
Lephoto's evidence as Mr. Leppan suggested was characterized by its
improbable nature. To start with the core function of an accounts
clerks will always be to issue receipt immediately on receipt of
moneys. I reiterate. It has to be immediate. This is more so where
there will always be a reason for paying out of moneys such as cash
bail deposits which are ordered in fixed amounts.
Lephoto's story was straightforwardly nonsensical. It is surely only
for purpose of record that commentary on her evidence should proceed
further that it already has. She says she kept the amount of M300
given to her by Accused for two weeks without issuing a receipt. When
she got wind of Accused's troubles she returned the money to PW1.
This was not put to PW 1. She had not told nor reported the incidence
to anyone until she testified about it in this Court when to have
done it earlier would have lend credence to Accused's story. She
should have come out when Accused was arrested. That she did not is
so mystifying that it can only merit rejection as I concluded.
inexplicable was Mrs Lephoto's inability to have issued a receipt
that it surely was nonsensical that she ever received the money is so
improbable. In all things about her cock-and-a-bull story she was so
cocky in the witness box. How can this Court believe that when M300
was being offered as full cash bail deposit for one case no receipt
was issued and the money was being floated amount in the witness
office for a few days on the "off chance" that PW 1 would
return with an outstanding M200 for another case? One of the
strangest things is the Accused appearance not to have suggested this
fact of Mrs Lephoto having received the cash from her to anyone.
Neither to PW 9, neither to
police, neither to the Crown witnesses. If not why can't one think
that that cash actually went towards the bribe not the bail deposit.
This latter aspect seemed not to be conclusive in view of PW l's
found that the Accused's version must yield to that of the Crown
became the former was false beyond a reasonable doubt. This was
indeed brought about by the incredibility of Accused to challenge PW
1 and other aspects relating to testimony of other Crown witnesses.
Evidently Accused version was this kind which evolves from witness to
witness with the resulting misfortune that witnesses go by and are
not challenged on issue over which they should have been. The
inability to put necessary questions, to witnesses characterized the
14.2 As I
said it cannot have been proved beyond a reasonable doubt that when
PW 1 delivered the amounts of M300 and M250 respectively those
amounts were actually for paying for bribery. So that I would reject
the Crown's contention that the evidence of PW 1 can be resolved
objectively by accepting that she lied by substituting the word
bribery for bail. It cannot bo said to be clear that the M550 paid
was to bribe the accused not to pay for cash bail deposit and medical
involvement of PW 8, PW 5, PW 6 and other police officers in the way
of a trap would have gone a long way to prove bribery condusiv .Uely
in the following hypothetical circumstances. If having paid the
initial M300 another amount of M750 would have been put forward. This
would have taken care of the M300 and M200 for cash bail deposit,
M500 for bribe and M50 for PW 1's brother medical expenses. Then PW 5
and PW 6 would have accurately asked for M500 from Accused without
fear of obscurity or ambiguity. May be a "cure-all" would
have been to involve PW 1 in the scheme. Unfortunately that is not
the evidence before the Court
finding is that the second scenario is accepted as having been proved
by the Crown beyond a reasonable doubt. It is that the evidence shows
that the Accused agreed to accept (having herself made the
invitation) M500.00 from PW 1 in exchange for not prosecuting her
brother Nchanyana Nchanyana at some future date for the third case.
stated earlier I allowed the amendment to the charge sheet by
inserting the words ".....agreed" after the word corruptly.
The evidence of PW 1 was not challenged whatsoever. Accused would
clearly suffer no prejudice, as I determined, by the amendment which
would be proper under section 161 if there had been no application
from amendments. 1
that the crime of Bribery as charged against the Accused has been
proved by the Crown beyond a reasonable doubt.
Authorities from this Court and elsewhere prove that "allegations
of bribery and corruption have recently enjoyed considerable
publicity and government has committed itself to fighting this evil
with every means at its disposal." See South African Law
Commission (Working Paper) Project 75 Bribery (1990). (Working paper)
Rex v Masupha Ephraim Sole CRI/T/111/99 Acting Justice Mr. Justice BP
Cullinan, 20th May, 2002, R v Acres International Limited
CRI/T/2/2002 Chief Justice M.L. Lehohla 17th September 2002. I found
the working paper a very useful treatment of the subject.
above sentiments find expression in the words of Mr. Justice de Klerk
in the judgment in Ex parte Tayob and Another 1982(2) SA 822(T) at
"Bribery and corruption are offences which attack the framework
underpinning an orderly society. It is more odious and more of a
threat against an honest, open community that other 'dishonest'
conduct becomes other dishonest conduct in general is not an attack
against the framework supporting society which may cause it to rot
and collapse but in general only threatens individual members or
isolated aspects of society."
of S v Narker 1975 (1) SA 583 is also referred to together with the
quotation in the working paper "and in Rex v Masupha Ephraim
Sole (sentence) 4th June 2002 where several cases on bribery are
quoted most instructively. In S v Narker (supra) Mr. Justice Holmes
JA said at page 586:
"Bribery is a corrupt and ugly offence striking cancerously at
the roots of justice and integrity, and is calculated to deprive
society of a fair administration."
cancer must be more destructive and harmful when the accused is a
state official who is at the pillar of the administration of justice.
The innards of the system become corroded by the cancer. That is why
the system may look wholesome from outside only to collapse at a
later stage. This might have been the direction things were taking.
Whether it was at an early stage is immaterial.
working paper refers to 1989 T. R. H.R. 383-35 where the learned,
author Labuschagne distinguishes the following reasons for punishing
"It is in conflict with the basis of democracy. Official bribery
violates the relationship of trust which underlies the meaningful
function of the state. Commercial bribery affects competition and
bribery promotes other crimes."
working paper starts on page 7 to comment about the definition of the
bribery by saying that: "A definition of the crime should be
wide enough to make provision for the interests protected thereby".
In R v Chorle (1945 AD 48 at 496) Mr justice Schreiner (Judge of
"The law of bribery is designed to protect the state against
those who by those who by gifts tempt its officials to use those
opportunities as such to further promote interests in slate affairs
And in S
v Van der Westhuizen 1974(4) SA 61(c) Mr Justice Baker approved of
the author Hunt's view that:
"It is also designed to protect the community generally against
corrupt public administration."
definition as found in Garndener and Landsdowne South African
Criminal Law And Procedure (1st Editionl919) at 735 reads as follows:
"It is a crime at common law for any person to offer or give to
an official of the state, or for any such official to receive from
any person, any unauthorized consideration in respect of such
official doing, or abstaining as having done or abstained form, any
act in the exercise of his official function."
"in his official capacity" were later substituted for "in
the exercise of his official duties" in later editions of the
work. In the present case it was not an issue whether Accused was a
state official. See S v Makhunga 1964(3) SA 513 (CPD).
working paper suggest that since the crime of bribery is committed
both by the person who gives the bribe and the person who receives it
seemed desirable to formulate the crime committed by the briber and
the crime committed by the bribee separately and as follows:
"Bribery (as a briber) consists in unlawfully intentionally
offering or agreeing with a state official to give any consideration
in return for action or in action by him in an official capacity.
(See also South African Criminal Law and Procedure Vol. II (JR
Milton) 2nd Edition page 219.
"Bribery (as a bribee) is committed by a state official who
unlawfully and intentionally agrees to take consideration in return
for action or inaction by him in his official capacity."
learned author CR Snyman in his Criminal Law (1984) at page 314
refers to active and passive bribery that is:
"Active bribery consists in unlawfully and intentionally giving,
agreeing to give or offering to give a state official any
consideration in return for either future or past action or inaction
by that state official in an official capacity."
"Passive bribery on the other hand is committed when a state
official unlawfully and intentionally receives or agrees to receive
any consideration in return for future or past action or inaction in
his official capacity." (My emphasis)
safely conclude that the latter definitions fit the facts of the
case. Moreover the learned author complements what I called the
second scenario in the analysis of the facts where he says:
".....for passive bribery to be completed it is not necessary
that the that the consideration stated actually have passed into the
hands of the bribee, his mere acceptance of an offer is sufficient to
constitute the complete crime."
why, in my view, the danger of misunderstanding PW l's uncontradicted
evidence in as much as she said "payment would be made in the
future" lies. Once the agreement was proved the crime itself was
concluded that the Crown has proved its case beyond a reasonable
doubt. I would therefore find the Accused guilty as charged. My
by the Honourable Mr. Justice T. Monapathi on the 6th day of November
already found this Accused guilty of bribery.
worth repeating that sentencing is the most difficult part of any
may make so many suggestions that the Court should give thought to in
the hope that these points of view will be endorsed. The task remains
a largely difficult one where one will normally be without guidelines
or matrices within which to work.
has listened most attentively the personal circumstances of the
Accused which centre around that she will lose her job, she is a
divorcee and a single parent and that the schooling of her children
will suffer and that those who depend on her will be left in dire
against that are other interests which are paramount and had to loom
large and which are related most directly to the offence and indeed
its gravity. That there were aggravating features in the crime
committed is beyond doubt.
the aggravating features is that, despite that, Accused has not
elected to go into the witness box and that she was invited to change
her attitude she has shown no remorse.
she has abused a position of trust and public responsibility. See
Julia 'Maphamotse Lebina and Another C of A (CRI) No.7/2001 4th
2002 per Ramodibedi JA. For a Prosecutor and a Senior Prosecutor at
that, it is difficult to imagine a more serious abuse of trust as Mr.
Leppan submitted. I respectively agreed. Her colleagues, the Director
of Public Prosecutions office and this High Court look upon
prosecutors to uphold the law. The Accused has demonstrably failed in
this trust. Indeed judging from the suggestion made that it could not
be the Accused acting alone one shudders to imagine once again how
much of the cancer remains in the environs of the Court where she
extent of corruption may be serious when one suspects that Accused
has prevailed over other members of the magistrate's Court to attempt
to assist her and show solidarity at least. Certainly with the last
witness Mrs Lephoto it was an outright attempt to seek to deceive the
Court with cheek and abandon. One may well surmise how deep the
cancer is if the tip of the iceberg is so fearsome.
what the Accused has done has had an adverse effect on the
administration of justice and in particular what the man in the
street perceived the majesty of justice in this country to be.
Accused was trying to do with trying to assist PW 1, if successful,
would have very well amounted to a guilty person being not
prosecuted, complaints being thrown out or neglected, and police
being frustrated in their investigations. The overall effect would be
that the administration of justice is stabbed on its soft underbelly
by a public official who is paid by government and the tax payer to
do legitimate and valuable administration of criminal litigation in
accepted the Crown's fear that the Accused's conduct had the effect
of setting a wrong example not only to junior prosecutors but to
magistrates because dismissal of a case involves the magistrate and
prosecutor working in tandem. This was even gratuitously suggested in
the evidence of PW 1. In my mind this cannot be an idle threat. It
boggles one's mind how tattered the system would ultimately look like
when such corruption is in full throttle. It would be best to call it
a disaster for absence of a better word.
these factors are considered even separately as the Crown suggested a
fine of any nature would be distinctly inappropriate. It might very
well suggest or create an impression that anyone can buy himself out
of trouble. This would be perceived, I suppose, even more if a high
amount of a fine was imposed. It is how invidious it becomes if one
attempts to marry a fine to a
crime that this perception may linger on. It is that one can buy
himself out of ill gotten gains. This would be unfortunate. A
suspended sentence would create the same impression or even impotence
on the part of the Court.
Accused has denied committing the offence charged. In this she
manifestly persisted if one judges from the fact that she could have
gone into the witness box and changed her attitude. It was being said
she was throwing herself into the mercy of the Court . Mr. Leppan
opined that if Accused had changed her mind it would affect sentence
by way of a lesser term of imprisonment. But it would remain a
stratagem for seeking to avoid a prison sentence that was
"beckoning". Indeed Accused would have to be given credit
for that but a belated change of heart is often associated with
absence of true remorse. One has to judge the attitude of an accused
from the start of a trial but not at the time when the bitter end is
near. I thought so.
society looks at the Courts as protectors of society itself, its
highest legal and moral values and as Mr Fosa said "of the young
democracy". The senior officials in the Law Office, and Justice
Department look at this Court as being well poised to mete out a
sentence that will deter others and root out the corruption. Bribery
as a form of corruption is indeed a concern as I have pointed out in
my judgment and it must be removed from under its roots by way of
of culprits to long periods of imprisonment. To emphasize this would
bo the best way of truly seeking to protect the society.
kind of corruption is dangerous can easily be learned from the
attitude of this Court and other jurisdictions as Court cases
demonstrate. Mr. Leppan referred this Court to S v William 2000(2)
SACR 396(C) where the case of S v Narker And Another 1975(1) SA 587
by Holmes JA as quoted and approved in S v Deal Enterprises (Pry) Ltd
And Others 1978(3) SA 302(T). At 316 Homes JA is said to have given
what he said was "a denounciatively emotive........, although
accurate characterization of bribery" as follows:
"Bribery is a corrupt and ugly offence striking cancerously at
the roots of justice and integrity, and it is calculated to deprive
society of a fair administration. In general courts view it with
Williams case a prosecutor had agreed to "lose a docket" in
exchange for a sexual favour. Equally demonstrate denounciative words
are used on page 399 of the Williams case by reference to Moral
Essays by Alexander Pope and the words of Baker J in S v Van
Wethuizen 1974(4) SA 61(c) at 62H-63A.
concept of justice in this country looks to the Courts for proper
service and fair administration. The ideal is not idle. That is why
the Courts will and should view acts of corruption which are
"calculated to deprive the society of
judicial administration..........with abhorrence."
of bribery must be punished severely. If it is not "like a
general flood shall deluge all; and avarice creeping on; spread like
a low-bom must, and blot the sun". "See Moral Essays -
Alexander Pope. This mean that if let lose bribery like all
corruption will cause immense damage and havoc.
case referred to the Court was S v Mogotsi 1991(1) SACR 604(c) per
Cloete J. It was where a first offender (like this Accused) who was a
traffic officer accepted a fee of M100 from a motorist for cancelling
a traffic summons. A sentence of four years of which two were
suspended was imposed.
in S v Mogotsi referred to a unreported decision of Paul v S where
Streicher J used words at page 3 of the judgment which are quite
instructive in a comparable case. The words were that:
"The offences committed are very serious offences. A policeman
is appointed to uphold the law and must realize that should be that
to do so and should we undermine the administration of justice by
taking bribes, he would be punished severely. If that is not done and
the public is not assured that no such misconduct would be tolerated
in the police the administration of justice will become impossible."
above case although it was found that there were several mitigating
including remorse, it was found however that nothing less than
imprisonment was an appropriate sentence. Anything less would sent a
wrong message as alluded to earlier in this judgment. The suggested
punishments included suspended sentences, postponement of sentences
and payment of fines by instalments all of which are allowed by
section 314 of the CP&E in proper cases. In the present case
there was not even an apology.
enough Mr. Leppan acknowledged Mr. Fosa's contention that the fact
that the Accused had been a public prosecutor who lent a hand in
sending prisoners to jail would meet those prisoners if sentenced to
imprisonment. That is why in South Africa there are special
arrangements. It is however unfortunate that this in some case is
unavoidable. So it should be in this case as I concluded.
agreed with both Counsel that the fact that the Accused is single
mother has those consequences whose effects will be immeasurably
traumatic if she is sent to prison. This will probably call for the
resources of the Accused's ex-husband and family to look after the
children. As I agreed with the Crown nothing more can be done to
alleviate the situation through the exercise of the powers that the
Court has in the circumstances.
Leppan was agreeable to the suggestion that one of the problems that
Courts need to find the sense of is the difficulty of bringing about
uniformity in sentences. This is even the situation in South Africa.
Uniformity of sentences is an ideal for which to strive. There still
are complaints in other countries about disparity in sentences even
in a single country. What the Courts should strive to achieve also is
to indicate that a crime is dealt with properly in the estimation of
all. I was of the view that this can still be achievable if a
sentence has not been too low or too harsh.
that it was not farfetched to suspect that the case was brought to
the High Court because of the interest that the Director of Public
Prosecutions had in it. Indeed it was serious in a number of ways.
One reason suggested by Mr. Fosa was the need to avoid putting
pressure on Accused's colleagues if the matter was prosecuted before
a magistrate by an ordinary public prosecutor. I agreed. All in all
this showed that the offence was serious.
warned that the Court should be wary of being influenced by matters
not proved in this case such as that this corrupt practice could have
been taking place for a long time without proof. Such would be
bringing extraneous things into the court's thinking. That would be
an undue influence. I can only say that 1 now suspect and merely
suspect that the practice takes place and not more.
mindful of Mr. Fosa's request that the Court has to exercise its
powers of mercy and avoid viewing things with anger. I agreed. I
wondered if there was anything called "righteous anger".
This Court however ought to be reminded of the words of BP Cullinan
AJ in Rex v Ephraim Masupha Sole 4th June 2002 where the learned
judge says at page 11-12:
brief, while the quality of mercy is "not strained", the
Court must avoid pitfalls of "maudlin sympathy" or
"permissive tolerance" in the matter.
"Accordingly the Court's painful duty is clear: the sentence
imposed by the Court must express the public abhorrence of what has
transpired and in particular emphasize that Lesotho will not tolerate
corruption in its midst. In this respect the sentence imposed must be
such as to act as a deterrence to others in the future."
I am sure
however that all things pivot around the need for the Court to
effectively seek to curb a dangerous kind of a corrupt practice with
the right attitude.
Court thought that a proper punishment was certainly that of
Accused is accordingly sentenced to a period of seven (7) years
imprisonment without option of a fine.
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